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Lots to chew on in dog bite bill

ANNAPOLIS — Legislators are bracing for a long debate Wednesday — the day the Senate is expected to consider potential amendments to a bill that would establish liability in dog bite cases.

Sen. Brian Frosh

Sen. Brian E. Frosh says of the proposal that came out of his committee: ‘Politics is the art of the possible.’ (The Daily Record/Maximilian Franz)

The debate and preliminary vote is scheduled almost a week after the Senate Judicial Proceedings Committee overwhelmingly approved an unamended bill sponsored by Sen. Brian E. Frosh, D-Montgomery.

“It’s going to be a robust debate,” said Frosh, who chairs the committee.

Divisions among senators, even in the Democratic majority, raise questions about whether Frosh’s bill can pass unaltered. And if it is amended in the Senate, Frosh said the legislation would die across the hall in the House of Delegates.

In Frosh’s bill, an injury or death caused by a dog bite creates a rebuttable presumption that the owner knew or should have known that the dog had dangerous or vicious propensities.

The legislation comes in response to a 2012 Court of Appeals ruling in which the court said pit bulls were inherently dangerous and owners of those dogs and landlords who rent to owners of that breed are strictly liable.

But not everyone is in favor of Frosh’s bill — even Frosh himself.

Sen. Robert A. “Bobby” Zirkin, D-Baltimore County, said Friday that he plans to introduce an amendment on the floor that would alter Frosh’s bill and create a liability standard with a limited number of defenses for dog owners.

“I’m going to make my best effort to show people we can have all of these things — breed neutrality, don’t hold the landlord liable and protect innocent victims,” said Zirkin, who was the lone vote against the Frosh bill in a committee voting session debate that lasted more than an hour.

Zirkin sponsored an alternative bill to Frosh’s, one that was nearly identical to a bill Frosh himself sponsored last year. In that bill, dog owners would be liable when their dogs bite except under certain circumstances, as when a victim provokes the dog before the attack.

That bill has not received a vote in committee and isn’t likely to. Frosh said it’s a standard that will not be supported in the House of Delegates.

“We can make progress this year, but we can’t make all the progress I’d like,” Frosh said. “I like the Zirkin bill, but it can’t pass the House.”

“Politics is the art of the possible,” Frosh said.

Zirkin, who serves on the Judicial Proceedings Committee under Frosh, agrees with his chairman about the need to get a bill done.

But Zirkin said he was concerned about issues raised by the Maryland Judicial Conference.

In a written memorandum to the committee in February, the conference, an official body that evaluates legislation to improve the state’s judicial system, said the bill as drafted is inconsistent with Maryland rules. The bill also raises “separation of power concerns under Article 8 of the Maryland Declaration of Rights,” according to the memo. Of special concern is the portion that would keep judges from ruling on the evidence before the jury renders its verdict.

“We do have to pass a piece of legislation,” Zirkin said. “We just shouldn’t pass a flawed piece of legislation.”

Zirkin said the court would ultimately strike down the provisions referred to in its memo. The result would be the codification of a so-called “one free bite” standard, under which victims will have to prove the owner knew the dog was vicious and had bitten people before.

But what Frosh said is possible is a compromise hammered out over the summer with Del. Luiz R.S. Simmons, D-Montgomery.

Efforts to resolve the issue last year fell apart amid accusations from Simmons that Frosh went back on a deal. The resulting conference committee compromise, which contained a liability with limited defenses, was supported in the Senate. The bill failed in the House.

The question to be answered Wednesday is whether the Frosh bill can pass in the Senate.

Both Frosh and Zirkin confirmed there are divisions in the Democratic caucus over the differences between Frosh’s current bill and the Senate’s position on the issue last year. Some of the Judicial Proceedings Committee members, such as Sen. Jamin B. “Jamie” Raskin, D-Montgomery, voted for Frosh’s bill but expressed during the voting session a desire to side with Zirkin.

Before the vote in committee, Raskin said he “agreed with every word” of Zirkin’s call to amend Frosh’s bill but said he voted for the chairman’s legislation “as a matter of strategy,” believing it was the only bill with a chance of passing this year.

Zirkin said the Senate was throwing in the towel because it’s afraid to do battle with Simmons and the House of Delegates.

“Would [his bill] be tougher to pass?” Zirkin said. “Sure, but that doesn’t mean you do the wrong thing just to get a bill done. You don’t surrender with 50 days left in the session.”